Patients Who Won't Sue Their Doctors -- Even When They Could

Mark Crane

Disclosures

November 25, 2013

In This Article

Saying "I'm Sorry" Doesn't Admit Liability

Saying "I'm sorry" after an adverse outcome doesn't have to mean that the doctor is admitting she did anything wrong. It's an expression of empathy that acknowledges the mutual disappointment felt by the doctor and patient, said Doug Wojcieszak, founder of Sorry Works, a program that trains healthcare providers and attorneys on how to disclose errors or poor outcomes.

"People sue when trust is broken between the family and provider," he said. "When there is early disclosure of an error accompanied by empathy, it's easier for the patient to be forgiving. We're a forgiving country, but we hate cover-ups."

"Simply say that you are sorry the event happened and you feel bad for the patient and his family," he said. "Acknowledge their feelings; promise an investigation; and assist with any immediate needs, such as lodging or transportation, if needed. Show you care. Document the chart accordingly, without emotion or speculation. Write down what you said, what you promised, and any questions or comments by the family."

Some families have worked with hospitals to institute patient safety classes named after an injured patient.

Early-disclosure programs also diffuse anger. Under a pilot program in Massachusetts, once an adverse event is identified, the provider will call the hospital risk manager and insurer. "They do an analysis of what went wrong and why," said Stephanie Sheps. "If it's determined that harm was caused by avoidable error, they would disclose that to the patient and consider offering compensation, if appropriate. All of this can occur before the family has even consulted an attorney."

Other Reasons Patients Never Sue

There may be a class of patients who might be called "conscientious objectors" when it comes to lawsuits. For a variety of reasons, they won't sue their physician or hospital, even if the injury is catastrophic.

In general, elderly patients are less likely to sue. "They still have a certain reverence for the medical profession," said Stephanie Sheps. "They're more willing than younger people to give doctors more latitude." Dr. Armand Leone agrees. "People who have experienced adverse events in their lives and gotten through it are more forgiving."

Some patients worry that filing a lawsuit could impede their ability to receive needed ongoing care, Sheps said. "If the harm is not permanent and the patient has more treatment to go, he may not want to rock the boat. If he feels that he's been well cared for overall, he will continue to want to be a model patient, believing he'll get treated better that way."

"Some individuals have values that acknowledge that no human endeavor is perfect and errors will occur," said Dr. Gerald Hickson. "They feel that nothing will be gained by taking this painful process into a courtroom. Some believe that a poor outcome may have been inevitable or God's will. The experience may have been painful, and a lawsuit will only force them to relive these events. Litigation is a stressful experience, and some people just can't stand to be confrontational."

Many patients who describe themselves as religious aren't inclined to sue. "I've practiced law in Pennsylvania for over 40 years, and I've never heard of an Amish person suing a doctor," said James Griffith.

"People in such places as Chinatowns or orthodox Jewish communities are reluctant to sue," said Dr. Leone. "In some tightly knit ethnic communities, there's a real risk for ostracism if a patient sues a doctor of the same religion. These communities can have their own parallel judicial systems. You need approval from the community leaders to file a suit in civil court.

"I had a case where a man in his late 30s had a devastating heart attack. He needed extensive care and had a wife and 3 children. The liability of the physicians was clear. But the community leaders opposed the lawsuit, and the patient's family felt they would be ostracized if they went against their leaders' wishes."

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